NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: ESTATE OF JOSEPH TECCE, : IN THE SUPERIOR COURT OF DECEASED : PENNSYLVANIA :
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APPEAL OF: TANYA TECCE : No. 2593 EDA 2023
Appeal from the Decree Entered September 12, 2023 In the Court of Common Pleas of Delaware County Orphans’ Court at No(s): 040-2018
BEFORE: STABILE, J., MURRAY, J., and LANE, J. MEMORANDUM BY LANE, J.: FILED NOVEMBER 18, 2024 Tanya Tecce (“Tecce”) appeals from the decree which: (1) found she failed to establish that the will of her father, Joseph Tecce (“the Decedent”), resulted from undue influence; (2) granted nonsuit, on her citation sur appeal, in favor of Joseph Tecce, Jr. (“Brother”), Roseanna Giannone (“Giannone”), and Matthew Ferragame (“Executor”); and thus (3) directed that the Register of Wills probate Decedent’s June 29, 2017 will (“June 2017 will”). We affirm.
The Decedent had two adult children: Tecce and Brother. Tecce has three children, who were the Decedent’s only grandchildren. See N.T., 11/1/22, at 14. For approximately eighteen years until his death, the Decedent lived with his girlfriend, Giannone, who had three children. Executor is Giannone’s son.
In the winter and spring of 2017, the Decedent took anti-anxiety medication. In March 2017, when the Decedent was seventy-eight years old, he underwent chemotherapy treatment, which caused congestive heart failure
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and breathing difficulties. He contacted an attorney, John Conner, Esquire (“Attorney Conner”), to prepare a will. Attorney Conner visited the Decedent in his hospital room twice, a few days apart, and drafted a will (“March 2017 will”). This will bequeathed percentages of the Estate as follows: (1) thirty percent each to Brother and Giannone; (2) fifteen percent to Tecce; (3) fifteen percent to Tecce’s adult son, Alessandro Tecce (“Alessandro”); 1 and (4) the remaining ten percent to be divided equally among the Decedent’s grandchildren. At trial, the Respondents presented an unsigned copy of this will.2 Subsequently, the Decedent began a different chemotherapy treatment.
The parties do not dispute that approximately three months later, on Father’s Day, June 18, 2017, Tecce and the Decedent had an argument at the Decedent’s home. Giannone, Brother, and Brother’s wife were present. At trial, Brother testified that the day after, the Decedent told him the reason for the argument: Tecce had previously asked the Decedent for money for
the first and last month’s deposit [to rent] a house in Narberth[.
The Decedent considered this request] until finding out that [Tecce’s] primary home in Clifton Heights was being foreclosed, which [she] did not tell him about. [Tecce] had been renting out her primary house and with that rent money, she was renting an additional apartment for herself in Wyn[ne]wood. [The Decedent]
relayed he was upset that she had three properties and he didn’t know. [Brother testified] that . . . his father and sister . . . had the blowup at the Father’s Day dinner. . . . [Brother was not] sure of the amount, but was aware [the Decedent] was concerned
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1 At this time, Tecce’s two other children were minors.
2 Executor testified that he has not seen a signed copy of the March 2017 will. See N.T., 8/16/23, at 86.
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about [Tecce’s] financial responsibility and would complain about [Tecce] wanting money from him, especially after that Father’s Day.
Orphans’ Court Opinion, 2/28/24, at 24 (citing N.T., 8/16/23, at 99-100).
Giannone testified that in early June 2017, Tecce discussed a lease first with her, and then the Decedent. See id. at 13. Giannone did not know the amount of money Tecce asked the Decedent for, although she heard the Decedent ask Tecce how much money she had in her bank account. See id. at 13-14. After Tecce left, the Decedent “was upset.” Id. at 13. Giannone further stated that the Decedent “would confide in telling her how [Tecce] needed to help herself,” and he “consistently” felt this way “well before 2017.” Id. Subsequently, the Decedent told Tecce over the phone “that he was not going to help her financially.” Id. Later, during the Father’s Day argument, Tecce was upset and told the Decedent, “[Y]ou never did anything for me. I always had to do it for myself,” and “Happy f[—]ing Father’s Day you a[--]hole.” Id. at 14. The Decedent swore back at Tecce. Id. Giannone testified: the argument lasted less than “a few minutes;” afterward, the Decedent “was visibly shaking and crying;” and Giannone “was concerned she might have to call the hospital, but after some time and taking a Xanax, he calmed down.” Id.
At trial, Tecce denied asking the Decedent for money during the Father’s Day visit. She testified: she did not know “how the argument started;” the Decedent did not indicate “why he was angry with” her; and “[i]t just didn’t
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make sense [why] he was mad.” N.T., 11/1/22, at 51-52. Tecce stated: the argument lasted “[a] minute or two;” the Decedent told her, “[F—] you;” Tecce “was shocked” and also said “[F—] you;” and then she and Alessandro, who was in the bathroom, left. Id. The Decedent did not appear to be angry at anyone else. See id.
Several days later, the Decedent contacted Attorney Conner to revise his will. Attorney Conner testified that he received a fax from the Decedent, setting forth amendments to his March 2017 will. The fax included the Decedent’s handwritten note:
Note: — My daughter has been a problem her entire life[.] On Father’s Day she cussed me out after I spent 2½ months in the hosp. [sic]. My son[, his wife, and Giannone were] present.
[Tecce] wanted me to bail her out financially — she has several degrees and should be able to get a job [and] support herself.
This is not the first [unintelligible]. My daughter needs professional help.
Fax from the Decedent to Attorney Conner, 6/28/17, Respondents’ Trial Exhibit R-3.
Attorney Conner talked with the Decedent, “to clarify the ‘substantial changes’” and to discuss “some of the challenges that could result from” a new will. Orphans’ Court Opinion, 2/28/24, at 20. Attorney Conner drafted the revised will, and the Decedent visited his office on June 29, 2017, to sign it. The Decedent reiterated the reasons for the changes were “[t]hat he had challenges with his relationship with his daughter,” and he discussed the
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Father’s Day argument. Id. Attorney Conner stated the Decedent “was not agitated,” “seemed to care about [Tecce], but was upset and disappointed and wanted to make sure she did not receive any of his estate,” and further stated that Tecce “needed professional help.” Id. at 21. Attorney Conner did not recall if he asked why the Decedent wished to make will revisions regarding his grandchildren. See id. at 20. He advised the Decedent “to get rid of the March 2017 will since it was revoked by the June 2017 will.” Id. at 21.
The new, June 2017 will removed Tecce and the grandchildren as heirs, while increasing the testamentary shares to Brother and Giannone as follows: sixty percent to Brother and forty percent to Giannone. Additionally, the will named Giannone’s son, Executor, as the executor.
Three months thereafter, on September 30, 2017, the Decedent passed away. The Register of Wills admitted the June 2017 to probate and granted letters testamentary.
On January 17, 2018, Tecce commenced the instant action by filing in the Orphans’ Court a citation sur appeal from the admission of the June 2017 will to probate. Tecce averred that when the Decedent executed the will, he had a greatly impaired physical and mental condition and weakened intellect, and Giannone and/or Brother exerted undue influence on him. 3 Tecce named
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3 Tecce’s two minor children and Alessandro were also named petitioners in
the petition for citation sur appeal. The record does not include any withdrawal by them from this matter, but some of Tecce’s own subsequent (Footnote Continued Next Page)
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Brother, Giannone, and Executor (collectively, “the Respondents”) as “parties of interest.” Tecce’s Petition for Citation Sur Appeal, 1/17/18, at 6-7.
On June 1, 2022, the Orphans’ Court issued an order directing that all discovery be concluded one week before the November 1, 2022 trial date — or by October 25, 2022. On October 22, 2022, Tecce served on the Respondents a notice of intent to serve a subpoena on Decedent’s primary care physician, James Minella, M.D. (“Dr. Minella”), for the production of medical records. See Respondents’ Objections to Notice of Intent to Serve Subpoena, 11/9/22, at 1. As we discuss infra, pursuant to Pa.R.C.P. 4009.21(a), Tecce was required to wait at least twenty days before serving the subpoena on Dr. Minella.
Trial commenced as scheduled on November 1, 2022. On November 9, 2022, the Respondents filed objections to Tecce’s notice of intent to serve a subpoena on Dr. Minella. The Respondents averred: (1) Tecce had already filed, in September 2022, a motion to extend the discovery deadline and to postpone trial, which the Orphans’ Court denied; (2) Tecce knew Dr. Minella
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filings omitted some or all of her children as named petitioners, and at trial and in this appeal, Tecce proceeded on her own behalf only. See also Respondents’ Brief at 9 (claiming that Alessandro and the two minor children, who have now reached majority, have declined to participate in this will contest).
Additionally, we note Tecce’s petition also presented a claim that the Decedent lacked testamentary capacity. She withdrew this claim at trial. See N.T., 11/1/22, at 87.
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treated Decedent and could have served the notice of intent “at any time during the almost five years in which the parties engaged in discovery;” and (3) the deadline for concluding discovery had passed. Id. at 1-2. Pertinent to the Orphans’ Court reasoning, the Respondents requested the Orphans’ Court to sustain their objections. Tecce did not file any response. On December 1, 2022, the Orphans’ Court sustained the Respondents’ objections. Tecce filed a motion for reconsideration, which the Orphans’ Court denied.
Meanwhile, the Orphans’ Court conducted additional trial proceedings on January 30, April 21, and August 16, 2023. Tecce, Brother, and Giannone testified as summarized above. Tecce further stated that after the Father’s Day argument, she called and sent text messages to Giannone, but she did not respond. See N.T., 11/1/22, at 62. Tecce did not see the Decedent again until the week he died, after Brother advised her that the Decedent was in the hospital. See id. at 62-63.
Tecce sought to present Terrance Baker, M.D. (“Dr. Baker”), as an expert witness in the areas of geriatric medicine and weakened intellect. The Respondents objected to Dr. Baker’s qualifications, arguing Dr. Baker did not talk to or examine the Decedent at any time, nor review any of his medical records from March through August 2017. See N.T., 8/16/23, at 52-53, 55. The Orphans’ Court agreed and sustained the objection, thus precluding Dr. Baker from testifying. See id. at 74.
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The Respondents presented the Decedent’s diary, which included the following entries made in the weeks before and after the Father’s Day argument: (1) “[M]y daughter wanted me to cash a CD;” (2) “[M]y daughter sent me a text full of lies blaming her failures on me. She needs professional help. Daughter is delusional;” (3) “Spoke with John Conner, attorney about changes to my will;” and (4) “I and [Giannone] drove up to the Conner Law Group in Jenkintown, PA. Made justified changes to my will. Nice day, was nice to run my car. Paperwork in office.” Orphans’ Court Opinion, 2/28/24, at 7-8. Tecce agreed that the latter entries were in the Decedent’s handwriting, but she believed the diary was “unusual as [the Decedent misspelled] a lot of words[,] used wrong grammar and . . . he usually did not make mistakes like that.” Id. at 6, 8.
Attorney Conner testified about his interactions with the Decedent, as discussed above. Attorney Conner also stated he “did not recommend [the Decedent] to receive a mental status exam prior to executing a will,” nor inquired whether “Giannone had any influence on him in the decision to remove his daughter and grandchildren from his will.” Id. The Orphans’ Court summarized Attorney Conner’s additional testimony as follows:
[H]e did not believe [the Decedent] was under anyone’s undue influence. [H]e did not believe [the Decedent] was influenced by . . . Giannone and her family because when [Attorney] Conner asked [the Decedent] about the increase to the Giannone and [Brother] shares, [the Decedent’s] answers were consistent with what was in his fax. [“The Decedent] seemed strong. [He] didn’t seem to me at any point in time during the two times I met with him that he would be intimidated or unduly influenced by
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anybody. He was his own man. His body was beat up, but he was strong.” . . .
Id. at 21 (citing 4/21/23, at 70-72). Attorney Conner also stated the Decedent “was in better health” at their June 2017 meeting than their March meetings. Id. at 20.
Finally, we recount that Attorney Conner testified he was permanently disbarred from the practice of law, following his federal jury convictions of wire fraud and obstruction of justice. Attorney Conner used a client’s credit card without her permission, when he had a gambling addiction, and he committed his crimes at “the same time that he was handling some of [the Decedent’s] affairs, in March and April 2017.” Id. at 16.
Following the presentation of the evidence, the Respondents made an oral motion for a compulsory nonsuit, arguing that Tecce failed to present sufficient evidence establishing direct or indirect undue influence on the Decedent. See N.T., 8/16/23, at 125-31. Subsequently, on September 12, 2023, the Orphans’ Court granted the motion for nonsuit, and thus directed the Register of Wills to probate the Decedent’s June 2017 will. Tecce filed a timely notice of appeal and she and the Orphans’ Court have complied with Pa.R.A.P. 1925.
Tecce presents the following issues for our review:
A. Did the Court commit an error of law and/or abuse its discretion when it granted Objections to [Tecce’s] Notice of Intent to Serve Subpoena on December 1, 2022, based solely upon [Tecce] not filing a response to the Objections[?]
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B. Did the Court abuse its discretion when it denied [Tecce’s]
Petition for Reconsideration/Motion Nunc Pro Tunc on January 6, 2023[?]
C. Did the Court commit an error of law and/or abuse its discretion when it sustained the [Respondents’] objection to the qualifications of [Tecce’s] medical expert, [Dr.Baker,] as to [the] Decedent’s weakened intellect[?]
D. Did the Court err when it granted the [Respondents’] oral motion for non-suit when [Tecce] had shown clear and convincing evidence of both direct and indirect undue influence[?]
Tecce’s Brief at 5 (issues renumbered).
In her first two issues, Tecce avers the Orphans’ Court erred and violated Pa.R.C.P. 4009.21 in sustaining the Respondents’ objections to her notice of intent to serve a subpoena on the Decedent’s primary care physician. “When reviewing the propriety of a discovery order, this Court determines whether the trial court committed an abuse of discretion.” Virnelson v. Johnson Matthey Inc., 253 A.3d 707, 713 (Pa. Super. 2021). “The purpose of the discovery rules is to ‘prevent surprise and unfairness and to allow a fair trial on the merits.’” Id. (citation omitted).
Tecce’s arguments implicate the interpretation of rule 4009.21.
“[W]hen the issue before us involves ‘the proper interpretation of the language of our rules of civil procedure,’ the question is a pure matter of law, and ‘our standard of review is de novo.’” FedEx Corp. Servs. v. Costume Gallery, Inc., 320 A.3d 129, 132 (Pa. Super. 2024) (citation omitted). Former
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Pennsylvania Rule of Civil Procedure 127, which was in effect at the time of the objections,4 addressed the interpretation of the rules:
(a) The object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court.
(b) Every rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
Pa.R.C.P. 127(a)-(b), rescinded Nov. 3, 2023, eff. Jan. 1, 2024. Additionally, rule 126 provides: “The rules shall be liberally applied to secure the just, speedy, and inexpensive determination of every action or proceeding to which they are applicable.” Pa.R.C.P. 126(a).
Pennsylvania Rule of Civil Procedure 4009.21 governs a subpoena upon a non-party for the production of documents:
(a) A party seeking production from a person not a party to the action shall give written notice to every other party of the intent to serve a subpoena at least twenty days before the date of service. . . .
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(c) Any party may object to the subpoena by filing of record written objections and serving a copy of the objections upon every other party to the action.
(d)
(1) If objections are received by the party intending to serve the subpoena prior to its service, the subpoena
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4 Former rule 127 was rescinded effective January 1, 2024, and adopted with
some amendments as current Pennsylvania Rule of Judicial Administration 108. See Pa.R.J.A. 108(a)-(c).
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shall not be served. The court upon motion shall rule upon the objections and enter an appropriate order.
Note: Subdivision (a) of this rule provides a twenty-day notice period during which a subpoena may not be served.
(2) If objections are not received as provided in paragraph (1), the subpoena may be served subject to the right of any party or interested person to seek a protective order.
Pa.R.C.P. 4009.21 (a), (c), (d)(1)-(2) (emphasis added).
In her first issue, Tecce avers the Orphans’ Court erred and abused its discretion in sustaining the Respondents’ objections to her notice of intent to serve a subpoena on Dr. Minella. First, Tecce avers the court’s ruling was premature. She reasons that under rule 4009.21(d)(1), a trial court may only rule on objections “after a motion to rule on the objections has been filed.” Tecce’s Brief at 12 (emphasis omitted) (citing Piroli v. Lodico, 909 A.2d 849 (Pa. Super. 2006)). Here, Tecce maintains, she did not file any such motion. Additionally, on the merits, Tecce maintains that: (1) she “did not learn the identity of [the] Decedent’s primary care physician until the deposition of the interested witnesses and parties which were completed immediately prior to the first date” of trial; and (2) the production of the medical records would not have surprised or prejudiced the Respondents, who “had complete access to the records.” Id. at 13-14. In Tecce’s related second issue, she contends the Orphans’ Court erred in denying her motion for reconsideration.
In sustaining the Respondents’ objections, and denying Tecce’s subsequent motion for reconsideration, the Orphans’ Court reasoned that her
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notice of intent to serve the subpoena was untimely. Tecce commenced this action in January 2018. The Orphans’ Court pointed out that more than four years later, it initially directed the parties to complete discovery by July 27, 2022, with trial scheduled for August 3, 2022. However, as summarized above, in June 2022 the Orphans’ Court postponed the discovery deadline to October 25, 2022, for a new November 1, 2022 trial date. The court found: “Ample time was afforded both parties to be prepared for trial.” Orphans’ Court Opinion, 2/28/24, at 28. Three days before the discovery deadline, however, Tecce served the Respondents with notice of her intent to subpoena Dr. Minella. Pursuant to rule 4009.21(a), Tecce then had to wait twenty days before serving the subpoena. See Pa.R.C.P. 4009.21(a). The Orphans’ Court reasoned: “By the time . . . the subpoena could possibly have been effectuated, the discovery deadline . . . would have terminated.” Orphans’ Court Opinion, 2/28/24, at 28 (unnecessary capitalization omitted). The court found that ruling in Tecce’s favor “would have been an unfair prejudice to the Respondents,” as well as violative of the discovery deadline order. Id. at 27. With respect to Tecce’s claim that a court may rule on objections only upon a party’s motion, the Orphans’ Court found that a party did file such a motion — the Respondents’ objections “specifically ask[ed] for the court to respond.” Id. at 28 (unnecessary capitalization omitted).
After review of the record and relevant law, we determine the Orphans’
Court did not abuse its discretion. See Virnelson, 253 A.3d at 713. First,
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we disagree with Tecce’s contention that under rule 4009.21, the court was precluded from ruling on the Respondents’ objections unless she motioned for the court to rule on it. Our review of the relevant law reveals no decisional authority addressing this issue.5 Next, we consider the plain language of rule 4009.21. As stated above, the Orphans’ Court found one party — the Respondents — did request the court to rule on the objections, and this satisfied the requirement for a motion. On appeal, Tecce does not address this reasoning. Our review of rule 4009.21 shows the only mention of a “motion” appears in subsection (d)(1): “If objections are received by the party intending to serve the subpoena prior to its service, the subpoena shall not be served. The court upon motion shall rule upon the objections and enter an appropriate order.” Pa.R.C.P. 4009.21(d)(1) (emphasis added). Saliently, although the first sentence focuses on the subpoenaing party, the second sentence, which includes the reference to a “motion,” does not identify which party shall file it. See id. In the absence of any such language, we decline to read a requirement into the rule. See Pa.R.C.P. 127(b), rescinded (providing that “[w]hen the words of a rule are clear and free from all ambiguity, the letter of it is not to be
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5 We reject Tecce’s reliance on Piroli, 909 A.2d 849.
Piroli made one passing
reference to rule 4009.21 — in summarizing that the plaintiff filed a notice of intent to serve a subpoena on a medical treatment facility. See Piroli, 909 A.2d at 847. However, there was no discussion of the rule’s requirement for a motion; instead, the issue concerned the applicability of the Peer Review Protection Act, 63 P.S. §§ 425.1-425.4. See id.
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disregarded under the pretext of pursuing its spirit”). Accordingly, we conclude rule 4009(d)(1): (1) provides merely that a trial court, “upon motion,” shall rule on the objections; but (2) does not identify which party shall file this motion. See Pa.R.C.P. 4009.21(d)(1). As stated by the Orphans’ Court, the final line of the Respondents’ objections was a request to the court to “sustain” their objections, and this request satisfied the requirement for a “motion.”6 See Objections to Notice of Intent to Serve Subpoena at 3.
On the merits, we find no abuse of discretion in the Orphans’ Court finding that Tecce’s notice of intent to serve the subpoena was untimely. See Virnelson, 253 A.3d at 713. Tecce does not dispute that if she had been permitted to serve the subpoena on Dr. Minella, after the requisite twenty- day waiting period, the discovery deadline would have already passed. While Tecce maintained that she did not learn the name of the Decedent’s primary care physician until depositions of unnamed “interested witnesses and parties,” Tecce’s Motion for Reconsideration, 12/16/22, at unnumbered 3, the
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6 We also conclude there is no merit to Tecce’s additional arguments — that
she was not required to file a response to the Respondents’ objections because the objections were “not filed in the form of a motion for protective order that contained a notice to respond directed to” her. Tecce’s Brief at 12-13.
Rule 4009.21 makes one reference to a protective order in subsection (d)(2): “If objections are not received [by the subpoenaing party], the subpoena may be served subject to the right of any party or interested person to seek a protective order.” Pa.R.C.P. 4009.21(d)(2) (emphases added). Here, Tecce has made no claim that she did not receive the Respondents’ objections. Accordingly, subsection (d)(2) is not invoked and the seeking of any protective order is not relevant.
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Respondents averred: (1) “[s]ince January 2019, the parties have engaged in extensive discovery, including the production of thousands of pages of documents, . . . depositions of party and non-party witnesses, and expert reports;” and (2) in any event, Tecce “knew of Dr. Minella’s treatment of [the] Decedent before his death.” Respondents’ Objections to Notice of Intent to Serve Subpoena at 1-2. Upon this record, we do not disturb the Orphans’ Court finding, that permitting the subpoena on Dr. Minella after the discovery deadline would have prejudiced the Respondents. See Virnelson, 253 A.3d at 713. In light of all the foregoing, we find no abuse of discretion in the Orphans’ Court sustaining the Respondents’ objections, nor in denying Tecce’s motion for reconsideration. No relief is due on Tecce’s first and second issues.
In her third issue, Tecce asserts the Orphans’ Court abused its discretion in sustaining the Respondents’ objections to the qualifications of her proposed medical expert, Dr. Baker. We consider the applicable standard of review:
Our standard of review of a trial court’s decision to exclude expert testimony is very narrow.
The admission or exclusion of evidence, including the admission of testimony from an expert witness, is within the sound discretion of the trial court. . . . To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.
In re Estate of Byerley, 284 A.3d 1225, 1239 (Pa. Super. 2022) (“Estate of Byerley”) (citation omitted). “Generally, relevant evidence is admissible and irrelevant evidence is in admissible. Evidence is relevant if it has “any
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tendency to make a fact [of consequence] more or less probable than it would be without the evidence.” Id. (citing Pa.R.E. 401).
In Estate of Byerley, a son challenged the probate of his ninety-one year old father’s will, which granted the father’s companion a life estate in his home. See id. at 1233. The son argued the companion exerted undue influence over his father. See id. The son sought to present, as both a fact and expert witness, a psychologist who examined the father sixteen months after the execution of the will and twenty months after the father first met with the attorney who drafted the will. See id. at 1232, 1240. The companion filed a motion in limine to exclude the psychologist’s testimony and report, citing the long passage of time between the will execution and the examination. See id. at 1233. The Orphans’ Court rejected the son’s response — that the psychologist’s “testimony would still be relevant despite [this] timing” — and granted the motion in limine. Id. at 1234.
On appeal, this Court affirmed the Orphans’ Court’s ruling. See id. at 1240. We first noted that in “ascertaining the testator’s intention, a will is to be construed as of the date of its execution.” Id. (citation omitted). We also considered: “To the extent that weakened intellect may be ‘proven through evidence more remote in time from the will’s execution,’ we understand the term ‘remote’ to reference a timeframe prior to the will’s execution, not after, as remote evidence of undue influence would precede the will’s execution.” Id. (citation omitted and emphasis in original). This Court then concluded
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that the record supported the Orphans’ Court finding — that any testimony by the psychologist, as either a fact or expert witness, “would not have been relevant to the Orphans’ Court determination as to whether [the father] had a weakened intellect because his single evaluation occurred sixteen months after the date of the [w]ill’s execution and twenty months after [the father] first met with” the scrivener attorney. Id.
We reiterate that in this matter, Dr. Baker did not talk to or examine the Decedent, nor review any of his medical records in the months surrounding his March 2017 and June 2017 wills. See N.T., 8/16/23, at 47. Dr. Baker did review the Decedent’s medical records from September 2017, the month he passed away, but Dr. Baker did not talk to any of the treating physicians. See id. at 50. Additionally, Dr. Baker reviewed medical records concerning the Decedent’s two prior surgeries, at unspecified times, and he reviewed deposition transcripts provided by Tecce’s attorney. See id. at 33, 47-48.
On appeal, Tecce challenges the Orphans’ Court reasoning that: (1) Dr.
Baker was not qualified because he did not examine or have direct contact with Decedent; and (2) Dr. Baker did not review “medical records contemporaneous with the time period surrounding” the execution of the June 2017 will. Tecce’s Brief at 15. Tecce avers the Orphans’ Court reasoning “more properly addresse[d] the weight to be given to the testimony, not its admissibility.” Id. at 16.
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In precluding Dr. Baker as an expert witness, the Orphans’ Court found that the information he reviewed would not support an expert opinion on the Decedent’s mental state at the time he executed the June 2017 will. See N.T., 8/16/23, at 79. The court reasoned that Dr. Baker relied on medical history not related to that time period, and indeed, he could not even state the dates of the Decedent’s prior surgeries. See id. at 78.
After our review, we conclude the Orphans’ Court did not abuse its discretion in precluding Tecce’s presentation of Dr. Baker as an expert witness. See Estate of Byerley, 284 A.3d at 1239. The relevant period for considering whether the Decedent had a weakened intellect was the time when he executed the June 2017 will. However, Dr. Baker did not review any medical records from that period. Additionally, whereas the psychologist in Estate of Byerley examined the father sixteen months after he executed his will, here Dr. Baker did not examine or even talk to the Decedent at any time. See id. at 1240. On this record, we conclude the Orphans’ Court did not abuse its discretion in finding Dr. Baker’s testimony would not be relevant to Tecce’s claim — that the Decedent had a weakened intellect when he executed the June 2017 will. Accordingly, we determine no relief is due on Tecce’s third issue.
In Tecce’s final issue, she avers the Orphans’ Court erred in finding she did not present sufficient evidence of undue influence on the Decedent and in
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granting nonsuit in favor of the Respondents. With respect to a nonsuit, we consider:
A motion for compulsory non-suit allows a defendant to test the sufficiency of a plaintiff’s evidence and may be entered only in cases where it is clear that the plaintiff has not established a cause of action; in making this determination, the plaintiff must be given the benefit of all reasonable inferences arising from the evidence. . . .
“When we review the grant of a non-suit, we must resolve all conflicts in the evidence in favor of the party against whom the non-suit was entered. . . . ”
Gregury v. Greguras, 196 A.3d 619, 625 (Pa. Super. 2018) (citations omitted).
We also consider the applicable standard of review for an Orphans’ Court adjudication of an appeal from probate:
In a will contest, the hearing judge determines the credibility of the witnesses. The record is to be reviewed in the light most favorable to appellee, and review is to be limited to determining whether the [Orphans’ C]ourt’s findings of fact were based upon legally competent and sufficient evidence and whether there is an error of law or abuse of discretion. . . .
We “will not lightly find reversible error and will reverse an Orphans’ Court decree only if the [O]rphans’ [C]ourt applied an incorrect rule of law or reached its decision on the basis of factual conclusions unsupported by the record.”
The Pennsylvania Supreme Court has repeatedly held that the “best evidence of a testator’s intent is the testamentary document itself and the testator’s arrangements with his attorney.”
Estate of Byerley, 284 A.3d at 1236-37 (citations omitted).
This Court has stated:
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Testamentary capacity exists when the testator has intelligent knowledge of the natural objects of his bounty, the general composition of his estate, and what he or she wants done with it, even if his memory is impaired by age or disease. “Neither old age, nor its infirmities, including untidy habits, partial loss of memory, inability to recognize acquaintances, and incoherent speech, will deprive a person of the right to dispose of his own property.” In determining testamentary capacity, a greater degree of proof of mental incapacity is required than would be necessary to show the inability to conduct one’s business affairs.
Finally, testamentary capacity is to be ascertained as of the date of execution of the contested document.
In re Estate of Smaling, 80 A.3d 485, 494 (Pa. Super. 2013) (“Estate of Smaling”) (citations omitted).
Our Supreme Court has addressed undue influence as follows:
The word “influence” does not refer to any and every line of conduct capable of disposing in one’s favor a fully and selfdirecting mind, but to control acquired over another that virtually destroys his free agency. . . . In order to constitute undue influence sufficient to void a will, there must be imprisonment of the body or mind . . . fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency and to operate as a present restraint upon him in the making of a will.
Id. at 498 (citation omitted).
. . . Once the proponent of the will in question establishes the proper execution of the will,[] a presumption of lack of undue influence arises; thereafter, the risk of non-persuasion and the burden of coming forward with evidence of undue influence shift to the contestant. The contestant must then establish, by clear and convincing evidence, a prima facie showing of undue influence by demonstrating that: (1) the testator suffered from a weakened intellect; (2) the testator was in a confidential relationship with the proponent of the will; and (3) the proponent receives a substantial benefit from the will in question. Once the contestant has established each prong of this tripartite test, the burden shifts
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again to the proponent to produce clear and convincing evidence which affirmatively demonstrates the absence of undue influence.
Id. at 493 (citations and footnote omitted).
With respect to the prong of confidential relationship, this Court has explained:
[A] confidential relationship exists “when the circumstances make it certain that the parties did not deal on equal terms, but on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed.” “A confidential relationship is created between two persons when it is established that one occupies a superior position over the other — intellectually, physically, governmentally, or morally —
with the opportunity to use that superiority to the other’s disadvantage.” . . .
Id. at 498 (citations omitted).
Tecce asserts the Orphans’ Court erred in granting the Respondents’
motion for non-suit, where she presented clear and convincing of direct undue influence. In support, Tecce contends: (1) “[t]he record evidence was clear that [she] was an active participant in [Decedent’s] life” and medical care; (2) she and Decedent had an argument on Father’s Day, in which they “cursed at each other;” (3) “Giannone testified that Decedent’s emotions and rage were so elevated that he was convulsing so much that she considered calling an ambulance;” (4) Giannone admitted that in the following days, she “parrot[ed] back to the Decedent reasons why [Tecce] was ungrateful, entitled[,] and spoiled[;]” (5) when Giannone overheard Decedent contacting Attorney Conner to revise his will, Giannone “exploited [his] vulnerability” and “made certain that [he] remained fixed in his anger” at Tecce; (6) Giannone drove
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Decedent to Attorney Conner’s office, and (7) Giannone continued “to isolate Decedent from [Tecce] until the very last week of his life and [he] was hospitalized and bedridden.” Tecce’s Brief at 18-19 (unnecessary capitalization omitted). Finally, Tecce contends that Giannone’s share of Decedent’s estate “substantially increased” under the new will. Id. at 19.
Additionally, Tecce acknowledges the Orphans’ Court “put significant weight on” Attorney Conner’s testimony, but asserts his “testimony should not have been accepted.” Id. Tecce maintains that Attorney Conner has been disbarred from the practice of law and convicted of wire fraud and obstruction of justice, for “crimes stemm[ing] from a . . . gambling addiction during the same period he was handling Decedent’s affairs.” 7 Id.
We first conclude no relief is due on Tecce’s claim that the Orphans’
Court should not have accepted or given weight to Attorney Conner’s testimony. As stated above, in a will contest, the Orphans’ Court determines the credibility of the witnesses, and we do not disturb its findings. See Estate of Byerley, 284 A.3d at 1236-37. The Orphans’ Court was free to weigh the circumstances of Attorney Conner’s federal convictions and disbarment, as
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7 Tecce further contends the Orphans’ Court improperly excluded expert medical testimony by Dr. Baker, which would have showed indirect undue influence. Tecce’s Brief at 19. As we have concluded above that no relief is due on Tecce’s challenge to the exclusion of Dr. Baker’s testimony, this claim is similarly meritless.
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well as his testimony about the Decedent and their interactions in preparing the two wills. The court concluded Attorney Conner
credibly and convincingly testified, in great detail, that during his representation of [the Decedent] prior to and on the date of the June 2017 Will’s execution, [the] Decedent showed no signs of weakened intellect, including manifestations of confusion, forgetfulness or disorientation; appeared to be of sound mind; and was able to understand completely and freely what he was doing.
Orphans’ Court Opinion, 2/28/24, at 32 (emphasis added). On appeal, we do not disturb these findings.
With respect to the merits of Tecce’s undue influence claim, we observe that the Honorable Kathrynann Durham has authored a comprehensive and well-reasoned opinion, with citations to the record and relevant authority. After a careful review of the parties’ briefs and the certified record, we affirm on the basis of the Orphans’ Court opinion as to Tecce’s undue influence claim. See Orphans’ Court Opinion, 2/28/24, at 3-22 (reviewing the extensive testimony by Tecce, Giannone, and Attorney Conner as to their interactions with the Decedent and observations of his mental state), 32 (finding Attorney Conner was credible in testifying that the “Decedent showed no signs of weakened intellect . . . and was able to understand completely and freely what he was doing”), 40 (finding that Tecce’s only testimony regarding the Decedent’s alleged weakened intellect was that he “was misspelling a lot of words[,] used wrong grammar and that he usually did not make mistakes like that”), 41-42 (finding “there was no evidence presented that [the] Decedent was in a state of persistent confusion, forgetfulness, or disorientation[, nor
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that he] was unable to manage his affairs,” and further finding “there was a lack of clear and convincing evidence” of a confidential relationship between the Decedent and Giannone), 42 (acknowledging that while Tecce “is upset” with the provisions of the June 2017 will, a parent owes no obligation to his children to leave them property, and concluding that “[w]ithout clear and convincing evidence that undue influence existed, the Orphans’ Court must honor [the] Decedent’s voluntary decision regarding the June 2017 Will”). In light of the Orphans’ Court thorough review and apt discussion of the relevant law, we do not disturb the court’s finding that Tecce failed to present sufficient evidence to support her undue influence claim. See Gregury, 196 A.3d at 625; see also Estate of Smaling, 80 A.3d at 493.
As we conclude that no relief is due on any of Tecce’s issues, we affirm the Orphans’ Court decree granting nonsuit in favor of the Respondents and directing that the Decedent’s June 2017 will be probated. The parties are instructed to attach a copy of the Orphans’ Court February 28, 2024 opinion to all future filings of this memorandum decision.
Decree affirmed.
Date: 11/18/2024
Circulated 10/29/2024 10:34 AM